Bobby Jindal and former Director of the Louisiana Office of Workers Compensation (OWC) Wes Hataway are gone but a court decision late last month could represent a legal smack down of the way workers’ compensation claims have been handled since July 13, 2011, Jindal’s third year in the governor’s office.
The ruling by 19th Judicial District Judge Don Johnson takes direct aim at a law pushed through the Louisiana Legislature and which set up new medical treatment guidelines for injured workers which plaintiffs said violated the due process clauses of the state and federal constitutions.
In his WRITTEN REASONS FOR JUDGMENT, Judge Johnson struck down provisions which:
- Stipulated that when a carrier/self-insured employer fails to return LWC forms within the five business days it is deemed to have denied such request for authorization;
- Provided an automatic “tacit denial” of medical treatment;
- Allowed OWC to enforce variances from medical treatment guidelines;
- Denied treatment not covered by medical treatment guidelines;
- Allowed the OWC a workers compensation carrier to arbitrarily submit—and the OWC medical director to accept—any information it desires without notifying the injured worker of the “evidence.”
The suit was brought against the Louisiana Workforce Commission (LWC) in 2013 by attorney Janice Hebert Barber and several physicians and injured workers who were denied benefits under the new law. Baton Rouge attorney J. Arthur Smith III represented each of the plaintiffs. Also named as defendants were LWC Secretary Curt Eysink, Hataway, and former OWC Medical Director Dr. Christopher Rich.
Barber said the regulations also discriminate against injured workers in that:
- Medical benefits were denied to injured workers because their physicians could not return calls from Rich’s staff as quickly as they liked;
- One request for medical treatment was denied because the injured worker’s attorney submitted too many pages of records to Rich;
- Another request for treatment was denied because the case itself was 12 years old;
- Numerous requests for treatment were denied because Rich claimed they were submitted by “bad doctors” who were “bad” only because they were too favorable to their patients, in Rich’s opinion;
- Requests for medical procedures were denied on the basis of who owned the medical equipment which would be utilized for the procedure;
- As of December 2012, Medical Director Rich had approved only 14 percent of all requests for medical treatment of injured workers in cases where compensability had already been determined;
- Rich had denied requests for medical treatment in cases in which he never even spoke to the claimants;
- Hataway repeatedly engaged in ex parte communications with attorneys and others representing workers compensation insurance carriers and self-insured employers;
- Hataway and his staff repeatedly expressed the Jindal administration’s “positions” on issues to be litigated by workers compensation judges to the judges themselves.
Barber said in her lawsuit that the new regulations had “enriched workers’ compensation insurance carriers and has harmed injured workers in Louisiana.” She claimed that under the new regulations, the Louisiana Workers’ Compensation Corporation (LWCC), the state’s largest workers’ compensation carrier, more than doubled premium dividend payments to Louisiana employers than were paid the year before the new law went into effect.
When Jindal named his four nominees to the University Medical Center Management Corp. Board back in March of 2010, he not only was looking after some of his more generous campaign contributors, but he also placed one of them in a position of potential conflict of interest.
At the time of his appointment as medical director, Dr. Christopher Rich of Alexandria currently held three separate contracts with the state totaling more than $3.3 million and he had already run into ethical problems with one of those contracts.
Rich also was named by Jindal as one of four nominees for the proposed billion-dollar University Medical Center that was to serve as a replacement for the 70-year-old facility that was closed after its basement was flooded during Hurricane Katrina in 2005.
Like many of Jindal’s high-profile appointees, Rich, his wife Vickie and business partner Dr. Mark Dodson, also of Alexandria, combined to contribute $9,500 to Jindal’s campaigns in 2007, 2010 and 2011.
Rich had a $516,646 contract to serve as Medical Director of the Office of Workers’ Compensation (OWC) Administration that called on him to approve or disapprove medical treatments and procedures for the Office of Workers’ Compensation.
That contract is actually to Chrickie Investments, a company owned by him and his wife.
In 2009, the Louisiana Legislature passed a law which changed the process for determining whether or not medical treatment was “medically necessary.” If a workers’ comp insurance company denies a treatment request, the denial is referred to the OWC medical director, in this case, Rich.
Though the law was passed in 2009, problems with implementing the rules to enforce the new law delayed the actual enactment date of the law until July 13, 2011.
Rich testified before the House Labor Committee that he was “denying 80 percent” of all treatment requested.
At the same time he was contracted to be the sole determiner of all medical treatment for Louisiana’s injured workers, he and Dodson were partners in Louisiana Ortho Services which held a $2.3 million contract to provide orthopedic services for the state, specifically Huey P. Long Medical Center.
Huey P. Long Medical Center (HLMC) at the time was one of 10 state hospitals that made up the LSU Health Care System which is administered by the LSU Board of Supervisors which also oversees the University Medical Center Management Board on which Rich sits. HLMC was subsequently shut down by the Jindal administration.
Because he also owned an interest in Central Louisiana Surgical Hospital which also provided medical treatment to injured workers, the question of his eligibility to make decisions on medical treatment which could financially impact the hospital as well as Mid-State came before the Louisiana Board of Governmental Ethics on separate occasions.
In March 2011, the ethics board ruled that Rich was prohibited, in his capacity as Medical Director of the Office of Workers’ Compensation, from participation in any matter involving Central Louisiana Surgical Hospital.
In January 2012, however, a second opinion said there was no conflict since he had terminated his relationship with Mid-State—only six months since the state had awarded Louisiana Ortho, that $2.3 million contract. Though he no longer is affiliated with Mid-State, he remains a partner in Louisiana Ortho with Dodson who in turn remains as a partner with Mid-State. The timing and the connections, to say the least, are curious.
Rich and Dodson also were partners in a company called ACTIVEMED, Inc., which held a $523,000 contract to provide orthopedic medical services to Northwestern State University student athletes.
Activemed also provided secondary insurance, also known as a preferred provider network (PPN) for two Louisiana university college sports teams and athletes. Basically, the athletes’ primary health insurance is the first payor for sports-related injuries. Then, if the student treats with an Activemed provider and they are enrolled with Activemed, then Activemed picks up the tab for the remainder of the treatment.
This means that Drs. Rich and Dodson had direct control over which doctors Activemed refers injured students to and if those same doctors happen to treat any Louisiana workers’ compensation patients, there existed a potential conflict of interest for Rich.
Activemed’s internet web page contains no list of medical providers, nor is Activemed listed under the Louisiana Department of Insurance either as an insurance company, a third party administrator (TPA), or an adjusting company.